Articles Posted in Work Visas

According to the LA Times, California reached a milestone late last month when federal immigration officials quietly announced that all 58 counties in the state are now participating in Secure Communities, a controversial program created to track and deport dangerous criminals.

Unveiled in late 2008, Secure Communities is billed as a showpiece of immigration enforcement. Under the Immigration and Customs Enforcement program, state and local police must check the immigration status of people who have been arrested and booked into local jails by matching fingerprints against federal databases for criminal convictions and deportation orders.

But today, Secure Communities is mired in problems. About 60% of the 87,534 immigrants deported under the program had minor or no criminal convictions, according to the U.S. Department of Homeland Security’s statistics, even though the program was aimed at dangerous criminals.

Our office has extensive experience assisting the clients in filing H-1B petitions. We also help the clients consider their options if the case is denied. Below is an example of the H-1B case that got approved even after the denial was issued.

The employer/petitioner was a large luxury hotel. The petitioner sought the services of the beneficiary in the position of a Food Service Manager.

The Immigration Service issued a Request for Evidence (RFE) in that case prompting the employer to submit additional evidence to establish that the position offered qualifies as a specialty occupation.

If an L petition presented by a Canadian citizen in conjunction with an application for admission is lacking necessary supporting documentation or is otherwise deficient, the inspecting CBP officer shall return it to the applicant for admission.

The officer should instruct the applicant for admission to obtain the necessary documentation from the petitioner to correct the deficiency. Id. The officer should not accept the filing fee for a petition lacking necessary documentation or that is otherwise deficient. Id. Instead, the filing fee should be accepted once the necessary documents are presented or the deficiency overcome.

The foregoing paragraph contains several noteworthy observations. First, the Code of Federal Regulations governing the Canadian L petition adjudication procedures uses mandatory language, not permissive language. The regulations clearly state that the CBP inspecting officer “shall return” such a petition to an applicant. Officers do not have discretionary authority in this matter. Accordingly, CBP officers are required to return to the applicant any L‐1 petition lacking necessary documentation or that is otherwise deficient.

Second, officers should not accept a petition filing fee for any petition that lacks necessary documentation or is otherwise deficient. Of necessity, officers will be required to conduct an initial review of an L petition presented by a citizen of Canada concurrently with an application for admission to the United States in order to determine if the petition includes all necessary documentation or is otherwise deficient. Only after making such a preliminary review will an officer be able to determine whether the petition includes sufficient documentation and information or whether it should be returned to the applicant along with the tendered filing fee. Only when an applicant returns with sufficient documentation or information to overcome a deficiency may the officer accept the filing fee for the L petition.

Third, there is an implicit rationale underlying the procedures described in 8 CFR §214.2(l)(17)(iv). As noted in the section above, the petitioner, not the Canadian citizen applicant for admission, is responsible for preparing and filing the L petition. Furthermore, the petitioner is not required to appear when an L petition is filed, whether this takes place at a USCIS Service Center or at a port of entry.

Therefore, the Canadian applicant for admission, in most circumstances, will not have documentation or information demonstrating that the petitioner is a qualifying organization. Documentation relating to the duties to be performed by the beneficiary also is unlikely to be available at a port of entry. Such documentation normally would be needed to provide details concerning the qualifying nature of the duties performed. In apparent acknowledgment of these realities, the regulations instruct inspecting officers to return incomplete or deficient petitions to the applicant in order to gather the needed documents or information from the petitioner.

Clearly Deniable Petitions

In some cases, an L petition presented by a Canadian citizen concurrently with an application for admission to the United States will be clearly deniable. In such circumstances, the inspecting officer should accept the petition with the filing fee and notify the petitioner of the denial, the reasons for the denial and the right of appeal. 8 CFR §214.2(l)(17)(iv).

It may initially appear that there is a conflict between the regulatory mandate to return to an applicant an L‐1 petition lacking documentation or otherwise deficient, with the instructions to deny clearly deniable petitions. Upon closer examination, however, these two instructions are not difficult to reconcile. Consider first the definition of the term “deficient.” This word is defined as an item “lacking in some necessary quality or element.”1 Useful synonyms are terms such as incomplete, fragmental, fragmentary, partial. Id. In contrast, the term “clearly” is defined as an activity performed “in a clear manner.”2 Useful synonyms are terms such as “inarguably, incontestably, incontrovertibly, indisputably.”
When a petition is deficient, it is incomplete. Information or documentation will not be present with the petition. The absence of information will leave a question remaining about whether the petitioner is a qualifying organization or whether the beneficiary is eligible for classification as an L‐1 intracompany transferee. When a petition is deficient, it is only partially complete. There remains the possibility that production of additional documentation or information may demonstrate the petitioner and/or the beneficiary are eligible to utilize the L‐1 intracompany transferee category.

Conversely, a petition that is clearly deniable cannot be cured by presentation of additional documentation or information. No question remains unanswered by the documentation or information presented with such a petition. Instead, the facts will indisputably demonstrate that the petitioner is not a qualifying organization or that the beneficiary does not satisfy the eligibility requirements for L‐1 classification.

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As of February 20, 2011, the U.S. Citizenship and Immigration Services (USCIS) will require that all employers filing Form I-129 petitions seeking employment of H-1B, H-1B1, L-1 and O-1A workers certify that they have reviewed Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) to ascertain whether or not an export control license is required for the employment. The certification is contained in a revised Form I-129.

More specifically, employers must certify that they have:

(1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and

A few days ago we received a Request for Evidence (RFE) for one of our H1B transfer cases as well for a new H3 visa Petition. The Request was stating that the employer can not be verified in the Validation Instrument for Business Enterprises (VIBE) Program, and the employer must submit more documents in order to be verified. Suggested documents are federal Tax returns, IRS registration documents, and more. So what is happening here?

The U.S. Citizenship and Immigration Services (USCIS) is beta-testing the use of a commercial business information service to independently verify petitioner information. The Validation Instrument for Business Enterprises (VIBE) Program will be used by USCIS Officers to access electronic records on entities filing Forms I-129, I-140 and I-360, nonimmigrant and immigrant petitions for foreign workers.

The electronic records review may include the petitioner’s business activities, North American Industry Classification System (NAICS) code, income and credit rating, ownership, affiliated entities, locations, number of employees, etc. If electronic information negatively affects eligibility or is inconsistent with what has been submitted by the petitioner, a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) may be issued.

There are many bars to changing status and adjusting status, and overstaying the visa is not the only problem. Unlawful employment can create several problems when one seeks to adjust status in the US.

Unlawful employment occurs quite frequently when the line between being a visitor for business and actual employment is crossed. Situations where this commonly occurs for performers and athletes are one-time appearances for which remuneration is paid incorrectly, self-employment, or providing volunteer services for which bonuses are later intended to be paid once a legitimate visa is obtained.

Appearing on Jay Leno to promote a project is fine, but getting paid to host a segment of Disney Channel is probably not. Performing at weddings, bar mitzvahs, and parties is also a problem if you were paid, and it may be a problem if you received something “inkind.”

Slightly sooner than expected but the H1B cap was reached today. U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap- subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

U.S. Citizenship and Immigration Services (USCIS) announced that as of January 21, 2011, it has received 62,800 H-1B petitions counting toward the congressionally-mandated 65,000 limit. Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the “H-1B cap.” Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are set aside for the Chile/Singapore H-1B1 program. However, USCIS adds back to the H-1B cap the projected number of unused Chile/Singapore H-1B1 visas, which for this fiscal year is 6,350. This means that, of the approximately 64,550 H-1B visas available this year, approximately 1,750 remained as of January 21, 2011.

USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions received in this category will be adjudicated under the general 65,000 cap.

USCIS has historically accepted a greater number of H-1B petitions than the number available for approval under the cap based on the assumption that some petitions will be denied, rejected or withdrawn.

Great update from AILA border Liaison for the benefit of our readers. Although Canadian nonimmigrants are largely visa-exempt, the non-Canadian dependent of a principal Canadian must be issued a visa to present for inspection and admission to the U.S. Visa issuance for L-2 non-Canadian dependents of L-1 beneficiaries whose petitions were submitted and approved at a port of entry or preclearance location have been problematic because, until recently, L-1 petitions submitted and approved at ports of entry or preclearance locations were not sent to the U.S. Department of State, Kentucky Consular Center (KCC) for entry into the Petition Information Management System (PIMS).

Visa issuance for TD non-Canadian dependents faced similar challenges, as no mechanism was in place to forward approvals of TN applications (consisting of only the TN letter) at the Port of Entry to the KCC for entry into PIMS.

Consular posts require confirmation of the principal Canadian’s approval of TN or L-1 application through a PIMS entry for a non-Canadian dependent’s visa application before they may issue visas to dependent L-2 and TD spouses and children. Thus, non-Canadian dependent spouses and children were unable to obtain visas, or visa issuance was significantly delayed.